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What can you do with pot-head employees
June 21, 2023
What can you do with pot-head employees
          How do we protect ourselves as the employer with medical marijuana being legal?  We do not want any of our employees to be allowed to have marijuana in their system while at work, showing up under the influence. 
          How do we protect ourselves as the employer? 
Name withheld
          If pot is legal in your state then you can't stop someone from consuming it and it will remain in their system; that doesn’t mean that are impaired or unable to properly do their job. 
          What you can insist on is that no employ be under the influence of drugs, any drugs.  Drugs is a slippery slope because a drug addict like an alcoholic is has a disability, and disabilities have protected employment status; you are required to make accommodations if possible.  In at will employment states you don't have to rely on any reason for terminating, so you certainly won't want to focus on a reason that gives an employee a right to sue you for violating civil rights.  
          Getting involved in your employee’s personal life will put you on notice of possible disabilities.  For example, you can’t very well encourage an employee to attend AA or some other addict support group without establishing that you are aware of their disability.  If you want to discharge that employee, even for other reasons, the specter of the disability will be the elephant in the room and you won’t be able to rest easy until you’re sure the employee has moved on.  Eventually all you’ll have to worry about is that the idiots that run your state decide it’s a good idea to resuscitate employment discrimination cases that have expired because of the statute of limitations to give the aggrieved another opportunity to think harder whether they were discharged because of the disability in violation of their rights.
          You may be in a state where drugs are not legal to sell or use and in that case an employee engaging in illegal activity should probably be terminated; just don’t into a discuss whether they are addicts because that will complicate your right to discharge.
          Employment law issues are probably trickier than alarm law, unless I am just more comfortable with alarm law.  K&K has attorneys who specialize in employment law and you and your HR personnel are welcome to call and engage us for legal guidance.  An employment practice insurance policy would help too.
          In mean time, make sure every employee has signed a K&K Employment Contract and if you have more than 10 employees you should have a K&K Employment Handbook.   The handbook can include all the special provisions you’d like and our employment attorneys will let you know if you’re planning to stick your neck out too far with policies.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301